Citation Nr: 0943113
Decision Date: 11/12/09 Archive Date: 11/17/09
DOCKET NO. 03-28 101 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Boston, Massachusetts
THE ISSUES
1. Entitlement to service connection for diabetes mellitus,
Type II, including as secondary to herbicide exposure.
2. Entitlement to service connection for hypertension, as
secondary to diabetes mellitus.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
S. Bush, Counsel
INTRODUCTION
The Veteran had active service from August 1963 to August
1967.
This matter comes before the Board of Veterans' Appeals
(Board) from an October 2002 rating decision of the RO.
The RO also denied service connection for hypertension,
claimed as secondary to diabetes mellitus and entitlement to
nonservice-connected disability pension benefits.
In a decision promulgated in June 2005, the Board denied the
Veteran's claims of service connection for diabetes mellitus,
Type II, SVT, rectal polyps and hypertension. The Board also
denied entitlement to nonservice-connected disability pension
benefits.
The Veteran subsequently appealed the claims of service
connection for diabetes mellitus, SVT and hypertension to the
United States Court of Appeals for Veterans Claims (Court).
The Veteran did not appeal as to the claim of service
connection for rectal polyps and the matter of nonservice-
connected pension benefits.
In an April 2007 Memorandum Decision, the Court vacated that
part of the Board's July 2002 decision that denied service
connection for diabetes mellitus, SVT and hypertension and
remanded these matters to the Board for further
consideration.
In October 2007, the Board denied the Veteran's claim for SVT
and remanded the claims for diabetes and hypertension for the
purpose of undertaking additional development and
adjudication. These matters are again before the Board for
the purpose of appellate disposition.
FINDINGS OF FACT
1. The Veteran is shown as likely as not to have been
exposed to herbicides while serving at Eglin Air Force Base
during his period of active service.
2. The currently demonstrated diabetes mellitus is shown to
have been manifested to a degree of at least 10 percent in
2002.
3. The currently demonstrated hypertension is shown as
likely as not to be due to the Veteran's diabetes mellitus.
.
CONCLUSIONS OF LAW
1. By extending the benefit of the doubt to the Veteran, his
disability manifested by Type II diabetes mellitus is
presumed to be due to herbicide exposure during active
service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1132,
5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159,
3.303, 3.307, 3.309 (2009).
2. By extending the benefit of the doubt to the Veteran, his
disability manifested by hypertension is proximately due to
or the result of the now service-connected diabetes mellitus.
38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002
& Supp. 2009); 38 C.F.R. §§ 3.159, 3.310 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As an initial matter, the Board notes that the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§
5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)
redefined VA's duty to assist the veteran in the development
of a claim.
The VA regulations for the implementation of VCAA were
codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
and 3.326(a) (2009). However, in light of the favorable
action taken hereinbelow, the Board finds that further
discussion of VCAA compliance is not necessary at this time.
The Veteran contends that his current diabetes mellitus is a
result of herbicide exposure during active military service.
Certain diseases, such as diabetes, are presumed to be the
result of exposure to herbicides, such as Agent Orange. 38
U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Unless there
is affirmative evidence to the contrary, a veteran, who
served in Vietnam during the period beginning January 9,
1962, and ending on May 7, 1975, is presumed to have had such
exposure. 38 C.F.R. § 3.307(a)(6)(iii) (2009).
Despite the Veteran's contentions, there is no competent
evidence of record that he performed any active service in
the Republic of Vietnam.
Nevertheless, veterans who were otherwise exposed to such
herbicides may also take advantage of those presumptive
health effects. However, unlike Vietnam veterans, they are
required to prove that they were, in fact, exposed to
herbicides during their military service. That is, they do
not enjoy the benefit of a presumption of exposure as do
Vietnam veterans. 38 C.F.R. § 3.307(a)(6)(iii) (2009).
The Veteran also asserts that he was exposed to herbicides
while stationed at Eglin Air Force Base. His service
personnel records reflect he was present at the base from
February 1964 to October 1965.
Records from the United States Center for Disease Control
(CDC) show that between 1962 and 1970, the United States Air
Force conducted tests at Eglin Air Force base to evaluate the
effectiveness of spray patterns used in delivering various
herbicides including Agent Orange. Further, CDC records show
that Agent Orange and other herbicides were stored at Eglin
Air Force Base.
See, e.g., www.atsdr.cdc.gov/hac/pha/eglin/egl-p2.html.
Accordingly, the Board finds that the Veteran is shown as
likely as not to have been exposure to herbicides while on
active duty.
The submitted medical records show that the Veteran was
treated for diabetes mellitus, Type II, beginning in 1995.
At the time of the July 2002 VA examination, he was noted to
have been using Glyburide, Metformin and Actos and following
a restricted diet. Accordingly, the Board finds that the
Veteran's diabetes mellitus manifested to a degree of 10
percent or more following service.
Since the Veteran was exposed to herbicides and he has been
diagnosed with Type II diabetes mellitus, the Board finds
that service connection for this disability is presumed. See
38 U.S.C.A. § 1116; 38 C.F.R. § 3.102, 3.309(e).
The record also reflects that the Veteran has been diagnosed
with hypertension, which, according to the July 2002 VA
examiner was "related to diabetes mellitus."
Therefore, service connection may also be granted for this
disability on a secondary basis. See 38 C.F.R. § 3.310
(2009).
ORDER
Service connection for diabetes mellitus, Type II, is
granted.
Secondary service connection for hypertension is granted.
____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge
Board of Veterans' Appeals
Department of Veterans Affairs